[Bloggers Note: Today's guest column comes from noted Atlanta-based business immigration lawyer, Eileen M.G. Scofield, who addresses a subject covered often before on NationOfImmigrators, the business-critical L-1 Intracompany Transferee visa category. (See, e.g., "The L-1 Intracompany Transferee Visa Facing Attack -- from All Branches of the Federal Government, Part I and Part II. Eileen and I, together with Miami immigration attorney, Jeffrey A. Bernstein, will speak later this week on "Surviving the 'L' Landscape" at the 35th Annual Immigration Law Update South Beach, hosted by the South Florida Chapter of the American Immigration Lawyers Association. Although her article is written for an immigration-attorney audience, it offers a useful background and fresh insights and practice pointers helpful to all readers. Note the image to the right is not Eileen Scofield; rather it depicts a frustrated individual whose level of obvious stress and angst mirrors that of the L-1 stakeholder community.]

What the “L” is Going on with USCIS?By Eileen M.G. Scofield

Introduction L-1 filings were once familiar territory. The statute and regulations provided a useful roadmap, and practitioners were soon comfortable navigating it with ease and efficiency. As more experienced L-1 visa practitioners know, changes in the L-1 process in recent years necessitate changes in the way we approach the L-1 process. Whereas the familiar guide provided by statutory, regulatory and judicial law was once sufficient; recent regulatory and policy changes have laid landmines, dug potholes, and strewn debris across the road, causing even the most experienced traveler to require a careful trek. In order to survive the journey on this once-familiar landscape, now we m we must also pay attention to issues related to national security, fraud, politics, economics, various administrative directives, internal agency guidance into the L-1 diet in order to survive. In light of these many issues, all practitioners need to revisit how they draft L-1 petitions, and as well, what they seek from the petitioner and beneficiary in the course of advising on L-1 petitions. And while the filing location and/or the A or B classification was often not in need of extensive analysis, in today’s environment, it is. Recent procedural changes at USCIS make the Request for Additional Evidence (“RFE”) more of an exception than a rule. And once filed and approved, what later issues should be anticipated. While this discussion will focus overall on Service Center Based Filings, the overall guidance might add value to other filings as well. By way of reference, this discussion focuses on changes in USCIS policy as they apply to L-1B petitions. However, the same principals also affect L-1A filings as well. The practice pointers in particular can easily be reworked to apply to L-1A specific concepts.Upheavals in the L-1 Landscape: Changes Abound, Denials Increase, “New” Rules Appear – What Happened to L? On October 9, 2012, USCIS and AILA discussed a number of issues including the adjudication of L-1B visa petitions.[1] There were two questions and answers on the agenda regarding adjudications of L-1B nonimmigrant visa petitions. One dealt with L-1B specialized knowledge in general, and the other focused on the significant impact on “new office” situations. Here is the question that was raised:Question 6f: Statistics released by USCIS and a recent study by the National Foundation for American Policy[2] have shown that the rates of requests for evidence and denials for petitions in the L-1B classification have increased dramatically and that the standard for what qualifies under the L-1B classification has been severely limited (AILA Doc. Nos. 12082954 & 12020964). This has been a particular burden on new and emerging companies in the U.S. The increase in requests for evidence and denials has happened even as practitioners have been overly cautious in recommending the l-1B classification to their clients. On January 24, 2012, AILA submitted a memorandum to USCIS on the current interpretation of “specialized knowledge” (AILA Doc. No. 12012560). Please update us on USCIS’ review of the memorandum and on the long-promised L-1B memorandum. (Policy)Response: USCIS continues to review the issues related to the interpretation of “specialized knowledge,” and is considering AILA’s memorandum of January 24, 2012 as part of this review.[3] The February 2012 NFAP Policy Brief cited by AILA provided an analysis of data that revealed high denial rates for L-1 and H-1B petitions at the USCIS. NFAP surmised that the increased rate of denials has resulted in harming the competitiveness of US employers and has discouraged companies from bringing new business and jobs into the United States.[4] According to NFAP’s executive summary: [t]he evidence indicates adjudicators or others at U.S. Citizenship and Immigration Services changed the standard for approving L-1B and other petitions in recent years, beginning in FY2008 and FY 2009. If one considers that in FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, that means U.S. Citizenship and Immigration Services adjudicators denied or delayed between 63 percent to 90 percent of all L-1B petitions in 2011.”[5] This change in adjudication came about without any change in law or regulations before or during this same period. It is unclear, therefore, why such a significant change in adjudicatory procedures has changed. Practitioners can only conclude the changes result from unannounced internal agency changes, which is the conclusion reached by NFAP. Further, the data analyzed by NFAP indicates that the stark increase in denials and delays is even greater for visa petition beneficiaries from India.[6] One of the results of this adjudicatory trend is a significant decrease in the number of L-1 visa petition filings with the USCIS Service Centers.[7] A review of recent RFEs and denials issued by the USCIS shows that the current theme in L-1 adjudications follows the following principles:

1. Qualifying experience

One year of experience with the foreign company within three years of transfer to the United States is no longer sufficient, despite statutory and regulatory language indicating otherwise.[8] For one company, three denials with the following similar language were issued: “In this case, the beneficiary has only been working with your organization since July 2010 and the petition was filed on August 2012.” In the fourth case, where the individual had been employed for four years, this sentence was not included.

2. What is “special knowledge”?

Under the INA, “an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.[9] The regulations further define the term as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.[10] These same denials included the following paragraph: While there is no requirement that an L-1B specialized knowledge employee possess proprietary knowledge of your company’s processes and methodologies, you state in your petition that the beneficiary here is familiar with them. There is no indication in the record however whether others in the field could obtain such knowledge in sufficient time so as not to cause a disruption or interruption of your business operations. If such company-specific knowledge is easily transferable to, or obtainable by, other dynamic decision making turnkey solutions professionals in the field without causing disruption to your business, this is a strong indicator that the knowledge in question is not special or advanced. By contrast, had a beneficiary been responsible for the development of your proprietary tools, processes, and methodologies, not being able to obtain that person’s services might in fact result in a significant disruption to your business. This interpretation is that only if the individual was directly responsible for the development of the proprietary tools, processes, and methodologies would that person be possibly qualified for an intracompany transfer. This removes from consideration key employees who were perhaps not involved in the design and development but have significant experience in applying the principles and techniques as part of a service organization and who are in the better position than the actual designer to deploy the product and/or service. Nowhere in the statute nor in the regulations does it at all indicate that entire classifications of employees are forestalled from being considered for L-1B transfers. It is also noteworthy that in issuing the denials, the USCIS examiner also took pains to note that -- because the proposed positions fall within one of the occupations listed in the Department of Labor’s Occupational Outlook Handbook (OOH) -- there was insufficient evidence to determine whether the position of Senior Quality Assurance Engineer involved “a special or advanced level of knowledge in the dynamic decision making turnkey solutions field or related occupation.”

3. Managerial Capacity

In the L-1A field, recent RFE experience shows that USCIS is focusing heavily on organizational substructures. No longer do examiners simply accept the company’s detailed description of duties. Rather USCIS now uses a variety of means to investigate the job qualifications of both the beneficiary and his subordinates. Examiners have been seen scoping job postings at related companies in the corporate family to determine similar requirements for positions. Special attention has been placed on the educational qualifications for subordinate positions, with supervisory and managerial duties themselves being disregarded.PRACTICE POINTER: Dealing within the current legislative framework?

Advise petitioners that one year of qualifying employment with the foreign entity may be insufficient.

If the individual beneficiary was not the key developer of a particular proprietary technology, methodology, or business program, then USCIS may find that the individual does not have specialized knowledge. (And further, even a demonstration that the beneficiary did play such a lead role will not guarantee approval of an L-1 visa petition.)

Describe the individual’s experience with the organization in such a way as to outline why his or her experience is different not only from those in the U.S. labor market, but also from other employees within the sponsoring organization. USCIS often cites to Webster’s New College Dictionary to define “special.” Practitioners are on notice to do the same. This same principal applies to other terms as well.

Explain why the experience could only have been gained through employment within the organization. Focus on the petitioner’s products and methodologies and their applications. Give special care if the individual is using other company’s products and technologies to explain how the use, methods, procedures, etc. tie into the sponsoring petitioner’s business. This is also true if the employee will be deploying a product to an end-client Focus on the petitioner’s business, not the client’s business.

Work with the petitioner to specify the nature of the claimed special knowledge. Focus on why it is necessary to have this special knowledge to perform the duties of the U.S. position, and outline how the special knowledge was gained.

If the position can be classified as a standard occupation that may be listed by the DOL in its Occupational Outlook Handbook, then explain why the sponsored position is not simply identical to the standard occupational role. Differentiate the sponsored position from the standard job description, so that USCIS understands that others in the occupation would not have the same level of knowledge and expertise as the beneficiary.

How is the work currently being handled without this individual? If this is a new role or need, explain why. If the L-1B nonimmigrant’s transfer to the United States will result in more job opportunities in the United States, make this explicit in the support letter.

Salary matters. If the employee is key to the organization, he or she should be compensated as such. Despite the fact that there is no per se wage requirement, be wary of low wage offers being sponsored for L-1B visa status.

What is the financial implication of the transfer? What happens if the individual is not granted the L-1B? What happens to the business?

Given the current L-1B adjudication trends, consider filing an H-1B visa petition or any other category that maybe available.

If filing an L-1A petition, pay careful attention to the organizational chart. USCIS puts special focus on these charts and expects to see each subordinate carefully detailed. The more detail the chart can show regarding the duties and qualifications of subordinates, the easier the RFE response will be.

Be careful to include evidence that subordinates have bachelors degrees and that these are required to perform the duties. USCIS tends to define “professional” as meaning “in possession of a bachelors degree” and tends to ignore supervisory or managerial duties of subordinates. Be clear in the petition exactly what type of role each subordinate is filling, and if that is not a so-called “professional” position, make it clear that the person is a supervisor or manager and thus “professional” status is not required.

Review the job duties of each subordinate employee and flag job postings within the company and other members of the corporate family that have similar positions. Ensure that the qualifications for these positions qualify under the USCIS definition of “professional” or consider restricting access to these postings until after the filing.

Practice Pointers: Draft your own map One major issue with L-1 filings is a lack of clarity as to what USCIS is looking for. If allowed to set the parameters of their review, USCIS inevitably comes up with undefined standards and uses them as an excuse to deny valid petitions. The problem is that the L-1 landscape they have created has no formal roadmap. Often, the best solution is to provide them with a map to follow. As with the above, the following is an example regarding specialized knowledge, but the same principles of immigration cartography can also apply to a variety of standards the government seems to want to view as nebulous. It often seems as if the USCIS position on what qualifies as specialized knowledge boils down to the “I know it when I see it” standard. If you combine this with not bothering to read what is submitted in a petition, then the adjudicator never has to “see it” at all. Present USCIS practice is simply to redefine the rules by making “specialized knowledge” something indefinable, or unattainable, then it can sometimes help to remind the adjudicator of what the real rules are. The following is an example of how you may be able to do this. It may not avoid the RFE, and it may not even help to win on the RFE, but then again it might. And it also helps to lay a foundation for appeal or litigation if your client is so inclined. So with that, we suggest that you may want to include some or all of the following in your petition or RFE response.

Specialized Knowledge

It appears from the request for additional evidence (RFE) that, notwithstanding the detailed explanation of the beneficiary’s qualifying experience and proposed duties that we provided with the petition, your office needs additional evidence showing that the beneficiary possesses specialized knowledge and that her proposed duties require specialized knowledge. We trust that the following will satisfy that request, and that it will establish by a preponderance of the evidence that the beneficiary qualifies for L-1B classification. The starting point for the definition of “specialized knowledge” is the Immigration and Nationality Act (INA) and the regulations governing the statutory language. Under section 101(a)(15)(L) of the INA, in order to qualify for L-1B status, a foreign national’s position must “involve specialized knowledge.” The regulations at 8 CFR Section 214.2(l)(ii)(D), explain: “Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, oran advanced level of knowledge or expertise in the organization’s processes and procedures.” (emphasis added). This explanation was further defined in a March 9, 1994 Guidance Memorandum from James A. Puleo, Acting Executive Associate Commissioner. This guidance was re-affirmed in a December 20, 2002 memorandum from Fujie Ohata, Associate Commissioner for Service Center Operations. In his memo, Mr. Puleo stated in part (emphasis added):

The current definition of specialized knowledge contains two separate criteria. *** The statute states that the alien has specialized knowledge if he/she has special knowledge of the company product and its application in international markets, or has an advanced level of knowledge of the processes and procedures of the company. *** Webster’s II New Riverside University Dictionary defines the term “special” as “surpassing the usual; distinct among others of a kind.” Also Webster’s Third New International Dictionary defines the term “special” as “distinguished by some unusual quality; uncommon; noteworthy.” Based on the above definition, an alien would possess specialized knowledge if it was shown that the knowledge is different from that generally found in the particular industry. The knowledge need not be proprietary or unique, but it must be different or uncommon. Further, Webster’s II New Riverside University Dictionary defines the term “advanced” as highly developed or complex; at a higher level than others. Also, Webster’s Third New International Dictionary defines the term “advanced” as “beyond the elementary or introductory; greatly developed beyond the initial stage.” Again, based on the above definition, the alien’s knowledge need not be proprietary or unique, merely advanced. Further, the statute does not require that the advanced knowledge be narrowly held throughout the company, only that the knowledge be advanced. * * * There is no requirement in current legislation that the alien’s knowledge be unique, proprietary, or not commonly found in the United States labor market.

Mr. Puleo’s memorandum goes on to set forth some of the characteristics of a specialized knowledge employee, but specifically states that these are not “all inclusive.” They include:

Possesses knowledge that is valuable to the employer’s competitiveness in the marketplace;

Is qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions;

Has been utilized abroad in a capacity involving significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position;

Possesses knowledge which normally can be gained only through prior experience with the employer;

Possesses knowledge of a product or process which cannot be easily transferred or taught to another individual.

We note as well that the controlling regulations and the subsequent interpretation and application of those regulations as referenced above follow passage of the Immigration Act of 1990 (IMMACT), which was enacted in part to overturn a handful of conflicting agency decisions that occurred prior to passage of IMMACT. Those decisions, some of which were designated as precedent decisions at the time, are now largely irrelevant in light of the passage of IMMACT. Of particular significance to the pending petition, IMMACT Section 206(a) added the following language to 8 U.S.C. §1184(c): "(B) For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. (emphasis added.) The regulations at 8 CFR §214.2(l)(ii)(D), that were enacted following passage of IMMACT remain in force today, and clarify that:

Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, oran advanced level of knowledge or expertise in the organization’s processes and procedures.(emphasis added).

Accordingly, the statute, the regulation, and the agency guidance referred to above make clear that there is no requirement that the knowledge be both special and advanced. Similarly, there is no requirement that the knowledge be special within the petitioner’s organization. In short, the controlling authority establishes that “specialized knowledge” is (1)special knowledge of the company’s product, service, research, equipment, techniques, management or other interests and their application in international markets; (2) that is different from that generally found in the particular industry, where (3) the employee possesses characteristics that are the same as or substantially similar to those identified in Mr. Puleo’s March 9, 1994 memorandum. Based on the foregoing, we respectfully maintain that the record amply reflects the beneficiary’s specialized knowledge. Practice Pointer: Fault Lines and Fault-Finding In the real world, many geographical features are set by fault lines. They create mountains, valleys, and many other otherwise incontrovertible features. In L-1 geography, however, sometimes USCIS will point to a feature and attempt to give it another name. The way to deal with this is to point at their “faulty faults” and establish the true rules with argument and evidence. In much the same way a stubborn child would do, you should consider looking at the USCIS’s determinations and statements and say “Oh yeah? Says Who?” Again, this example focuses on specialized knowledge, but the same principles apply to other areas as well. USCIS sometimes avoids having to give any reasonable or rational explanation for a failure to find specialized knowledge is by rejecting your client’s statements as unreliable because they are unsubstantiated and self-serving. As often as not, USCIS will cite Matter of Treasure Craft of California, 14 I. & N. Dec 190 (Reg. Comm. 1972), as authority for rejecting your client’s statements in support of the agency’s own self-serving outcome-oriented analysis. Again, it may not ensure that you prevail on the RFE, but it still could prove worthwhile to point out what Treasure Craft really says, and then to argue that the petitioner’s statements satisfy the preponderance of the evidence standard: In Matter of Treasure Craft of California, 14 I. & N. Dec 190 (Reg. Comm. 1972), the Commissioner essentially set forth three propositions in connection with considering otherwise unsubstantiated information provided by a petitioner or applicant. Those propositions are:

It is proper to consider all of the facts in a visa petition proceeding in arriving at a conclusion regarding the issues;

The petitioner’s statement must be given due consideration; and,

The petitioner’s statement should be rejected only when it is contradicted by other evidence in the record of the matter under consideration.

Treasure Craft involved an H-3 trainee petition on behalf of four Mexican nationals, all of whom were already working without documentation for the petitioner. The petitioner sought to qualify the beneficiaries as trainees in a program that would train them in various aspects of the pottery making industry, and the District Director denied the petition. The Regional Commissioner, in dismissing the petitioner’s appeal, wrote “Counsel’s argument that the petitioner need only go on record as stating that training [in making ceramic pottery] is not available outside the United States is rejected in this matter. It is commonly known, and administrative notice is taken of the fact, that Mexico exports pottery to the United States in successful competition with United States manufacturers. ” id. at page 3 (emphasis added). In taking administrative notice of Mexico’s healthy pottery industry, the Regional Commissioner cited evidence that called into question the petitioner’s statements, and accordingly rejected the petitioner’s unsupported, and largely unbelievable, contention that no adequate opportunities for training in ceramics fabrication existed for the beneficiaries in Mexico. The opinion goes on to hold that, [I]t is proper to consider all of the facts in a visa petition proceeding of this nature in arriving at a conclusion regarding the issues. The petitioner’s statement must be given due consideration; however, this Service is not precluded from rejecting such statement when it is contradicted by other evidencein the record of the matter under consideration.id. at page 4. (emphasis added). Accordingly, in the absence of evidence in the record that contradicts the petitioner’s statements, the petitioner’s assertions with respect to the specialized knowledge possessed by the beneficiary must be given “due consideration,” and should not be dismissed or discounted. When the petitioner’s statements are accorded the evidentiary value they deserve, it becomes abundantly clear that the petitioner has established by a preponderance of the evidence that the beneficiary possesses specialized knowledge.Landmines for the Unweary Traveler: Vulnerabilities and Potential Abuses of the L-1 Visa Program, But by Whom? The regulatory and legislative history surrounding the L-1 visa make it clear that the purpose of the L-1 visa category is to enable employers/companies to transfer key personnel into the United States, but recent trends have reduced the ability of the employer to persuade USCIS that an employee is key. Employers are greatly enhancing the documentation provided and struggling to meet seemingly new requirements that have sprung up despite no changes in the law or regulations. Matter of Treasure Craft of California, discussed above, like certain nasty vegetables, must be known, and addressed in L-1 petitions. While terribly unfortunate that it is used as a tool to undercut the credibility of a petitioner and as well as to support the agency’s own self-serving outcome, if not aware, the surprise can be disastrous for many. So query, what is the source of all this negativity? At a time when the research and headlines are all in support of the L-1 visa classification, and its many benefits to the U.S., it would seem the reverse course would be taken:

Startup Visa Could Create at Least 1.6 Million U.S. Jobs in Next 10 Years, According to Kauffman Foundation Report, February 27, 2013,Rose Levy and Barbara Pruitt, Media Contacts for Foundation;

Not Coming to America, Why the U.S. is Falling Behind in the Global Race for Talent, May 2012,By: Partnership for a New American Economy

Today at DHS, and its many tentacles, immigration benefits are now a lower priority, preceded first by national security and fraud detection. As disclosed on February 15, 2012 by Alejandro N. Mayorkas, Director of U.S. Citizenship and Immigration Services before two House committees, anti-fraud and fraud detection are such a priority that he outlined 16 programs undertaken by USCIS related to fraud and security. In addition, in 2005, the DHS Office of Inspector General (“OIG”) sought to find and identify fraud and those factors which led to fraud in the realm of the L-1 visa category. Accordingly, OIG met with DHS program managers in Washington, DC, adjudicators and supervisors at the four service centers, consular staff at 20 of the largest L-visa issuing posts, and also employees at the Kentucky Consular Center's Fraud Prevention Office. OIG did not apparently meet with the U.S. Chamber of Commerce, US Department of Commerce, Small Business Administration, any of the 50 plus state level business development agencies, any L-1 visa holders, or trade associations or L-1 petitioners for that matter. In 2006 The OIG published its report wherein it determined that the L-1 program is vulnerable to abuse and fraud for a variety of reasons, but most immediately, because:

"The program allows for the transfer of managers and executives”,[11] but in 2006, after decades of use of the L-1 for manager and executives, “adjudicators find it difficult to be confident that a firm truly intends using an imported worker in such a capacity”[12];

“The program allows for the transfer of workers with “specialized knowledge””[13], but in spite of the decades of use and guidance, “the term specialized knowledge is so broadly defined that adjudicators believe they have little choice but to approve almost all petitions;”[14]

“The transfer of L-1 workers requires that the petitioning firm is doing business abroad”, but, in spite of the world wide web and the expediential growth in global access to data,, adjudicators now “have little ability to evaluate the substantiality of the foreign operation”[15]

The program allows for start-up operations that do not yet have operations in the U.S.,[16]and even though that was the specific intent of the law, now adjudicators do not know how to process that part of the law;

The program “permits petitioners to transfer themselves,”[17]and again, even though this ability, in certain circumstances, to transfer oneself to the U.S., is covered under the regulations to the adjudicators, this cannot be right.

Interesting as well, the OIG report highlights that these last two points in particular represent the "windows of opportunity" for the L-1 abuse that is occurring.[18] Also of note, the report refers always to “the program” and not to “the law”. This L-1 based OIG report webs nicely with the recent USCIS memo wherein USCIS outlines the its definition of “fraud indicators”, petitioner with a gross annual income of less than $10 million, 25 or less employees, established within last 10 years. October 31, 2008 Internal Guidance Memo from Donald Neufeld, Acting Associate Director, Domestic Operations. HQ 70-35.2, reprinted at AILA InfoNet Doc. No. 12052252, 5/22/12. Then too, there has been discussion that the Fraud Detection and National Security of DHS will soon investigate the use of L-1’s, and expand its investigations of the same to include site visits similar to the FDNS program for H-1B petitions which has yielded few instances of fraud.[19] As a result of these recent trends, USCIS has added the noted additional L-1 requirements, and has also dramatically increased the use of the RFE as a tool to vet out all that “fraud” in the L-1 visa classification. As previously noted this activity has been confirmed in the National foundation for American Policy and addressed in other sources as well.[20] A typical example of this phenomena was noted when a 45 year old company, with offices in 16 countries (manufactures, sells and services its products globally), decided that its U.S. sales required the establishment of a U.S. sales and service office. This practice has been recognized by business and immigration officials for decades. The company elected to transfer a 60 year old Canadian national, one of its most seasoned executives, to the new U.S. subsidiary as President. The initial L-1A visa petition was finally approved for one year, but only after a 6 page RFE was issued. After the new office one year was completed, and three U.S. employees, the L-1A visa petition extension was denied, again after a juicy RFE. USCIS concluded that because the President was also a degreed engineer, the evidence did not support a finding that the President of the company was really an executive and/or a manager.. When the company changed tactics and filed an L-1B visa petition, USCIS, then issued the next RFE seeking the following data:

1) Describe a typical work week for the beneficiary, to include a discussion of the specialized nature of his position. 2) Identify the manner in which the beneficiary has gained his specialized knowledge. 3) Provide evidence showing either:

(a) The beneficiary’s knowledge is uncommon, noteworthy, or distinguished by some unusual quality and not generally known by practitioners in the beneficiary’s field of endeavor; or (b) His advanced level knowledge of the processes and procedures of the company distinguish him from those with only elementary or basic knowledge.

4) Provide evidence to show that the knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but that it is truly special or advanced. 5) Indicate the minimum amount of time required to train an employee to fill the proffered position. 6) Specify how many workers are similarly employed by your organization. 7) Of these employees, indicate how many have received training comparable to the training administered to the beneficiary. 8) “The purpose of the L-1B provision is to facilitate the admission of key personnel for those companies who require an employee with advanced knowledge to perform duties in the United States. Most individuals working for a company may be considered ‘specialists’ to some degree, since they have a certain amount of training specific to their employment. It cannot be concluded, however, that all employees who hold special knowledge qualify as ‘specialized knowledge’ workers.” Provide evidence of the advanced training and advanced knowledge. As the law states, Section 101(a)(15)(L) provides for the admission of “an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.”[21]

The relevant regulations define “specialized knowledge” as “special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.”[22] Per USCIS, one with specialized knowledge is not a specialized knowledge worker. Specialized knowledge is not enough because ADVANCED specialized knowledge is required. In addition, employers must address whether another person could instead be employed in the same capacity. Nothing in the L-1 statute or the regulations lends itself to these requirements. The established law requires merely that the Beneficiary has specialized knowledge, and will be employed in a capacity that involves this specialized knowledge. It would seem that the reason the OIG notes confusion about the definition of specialized knowledge in its report, is not due to the statute, or regulations, but instead due to some adjudicators and the RFE template language produced by USCIS. The manner in which Specialized Knowledge is gained now also appears to be a factor in USCIS adjudications for L-1B beneficiaries and the petitioner is advised to address this issue. Per USCIS, specialized knowledge comes from two key sources: experience and training. Training and experience related to products, services, equipment, techniques, processes, etc. are the norm, yet, this particular RFE demonstrates a reach outside the scope of the law. Nowhere in the definition of “specialized knowledge” are the terms “uncommon, noteworthy, or distinguished” to be found. “Specialized” as used in this context does not connote exclusivity, but rather narrows the field of “knowledge”. The definition of “specialized knowledge” does not require that the knowledge be “advanced” or “exclusive.” The term “specialized” refers instead to the fact that the knowledge must be related to the business of the Petitioner. So, based on this RFE, a petition needs to include evidence that knowledge is not “General” knowledge but is specialized and advanced. “Similarly trained employees” appears nowhere in the statute nor in the regulations. Nowhere in the statute or regulations is it indicated that the beneficiary of an L-1B beneficiary must be the only person with the specialized knowledge. Rather, the regulator wisely left it to the petitioner to determine which, if any, of its employees is best able to transfer to the U.S. entity and aide in the development of the company’s business.Practice Pointers: MINESWEEPERS, SURVEYORS, AND OTHER TOOLS TO SURVIVE THE NEW L-1 LANDSCAPE What to do in this new environment? First, know the context of this new era -- read the OIG report—it exposes the predisposition against a favorable adjudication of an L-1 visa petition. Read as well the fraud factor memo noted above, and be sure that these issues are addressed as best able in the petition. Understand how Matter of Treasure Craft of California is being used, or abused. Third, understand the preponderance of the evidence standard and prepare cases accordingly. Fourth, and key, in an “effort” to try and standardize what was previously a quite consistent understanding of the L-1 nonimmigrant category, but now is not, USCIS has issued standard RFE formats to “facilitate” its adjudication. The adjudicators are to drop the right data in each form as per the blanks.[23] These, like papaya, are extremely helpful and practitioners should indulge in them. They are checklists, guidance and identify the boxes the adjudicators are ticking. Fifth, look to older published RFE where sometimes one can see that certain words must apparently trigger certain concepts. For instance, pulled from some of the L-1B RFEs, the words below might be a guide to what USCIS now seeks. Naturally though, each set of words must include a fact(s) to support such.

not general knowledge held commonly throughout the industry but that it is truly special or advanced

qualified to contribute to the U.S. employer's knowledge of foreign operating conditions as result of specialized knowledge not generally found in the industry

utilized abroad in a capacity involving significant assignments that have enhanced the employer's productivity, competitiveness, image, or financial position

possesses knowledge that normally can be gained only through prior experience with that employer

‪meetings/presentations to or for board, owners, management

international marketing strategies

management secrets

pricing strategy

‪trade secrets

‪patents

‪client lists

‪business plans

technical training

products

services

research

equipment

techniques

management

Finally, remember at all times that your petition and your responses to RFEs are creating the record you will use for appeal. By defining your standards carefully, you can set the tone of the review and force USCIS to meet you on ground you have defined. Draft your petitions with the RFE and appeal in mind and you will be able to define the brave new world in which you and your clients will soon find themselves.

[1] USCIS-American Immigration Lawyers Association (AILA) Meeting (Oct. 9, 2012), published on AILA InfoNet at Doc. NO. 12101045 (posted Oct. 10, 2012).[2] According to its website, “[t]he National Foundation for American Policy (NFAP) is a non-profit, non-partisan organization dedicated to public policy research on trade, immigration, education, and other issues of national importance. The organization seeks to expand the debate over the proper role of government on key issues of the day and to engage actively in the media and with the public to ensure its ideas are considered and implemented wherever possible.” http://www.nfap.com/about/missionstatement[3] Id. at 7.[4] Analysis: Data Reveal High Denial Rates for L-1 and H-1B Petitions at U.S. Citizenship and Immigration Services, NFAP Policy Brief (Feb 2012), published on AILA InfoNet at Doc. No. 12020964 (hereafter NFAP Policy Brief) at 1.[5] Id.[6] Id. at 7.[7] Id.[8] INA § 101(a)(15)(L); 8 CFR § 214.2(l)(1)(i); 8 CFR § 214.2(l)(3).[9] INA § 214(c)(2)(B).[10] 8 CFR § 214.2(l)(ii)(E).[11] Id. at 4.[12] Id.[13] Id.[14] Id.[15] Id.[16] Id.[17] Id.[18] U.S. Department of Homeland Security, Office of Inspector General, OIG-06-22, Draft Report, Review of Vulnerabilities and Potential Abuses of the L-1 program, p. 4. This L-1 based OIG report, also includes a section wherein it repeats and summarizes statements by individuals who fear that the L-1 will displace U.S. workers, though no empirical data is included in that discussion.[19] Id. at 18, 35[20] Policy recently released its report confirming the dramatic increase in L denials (NFAP Report on High Denial Rates of L-1 and H-1B Petitions at USCIS, National Foundation For American Policy, NFAP Policy Brief, February 2012, AILA Doc. No. 12020964, http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L-1_and_H%201B_Petitions.February2012.pdf;), and similarly USCIS addressed this issue as we , L-1B Performance Data by Approvals and Denials, AILA Doc. No. 12082954, http://www.aila.org/content/default.aspx?docid=41107. http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/i-129-l-1b-performance.pdf)[21] INA §101(a)(15)(L).[22] 8 CFR 214.2(l)(1)(ii)(D).[23] U.S. Citizenship and Immigration Service – RFE L-1B templates, April 2010, reprinted at AILA InfoNet doc. No. 12040457, 12010572, 12010573, 12010571, and as well, AILA’s Response to USCIS as well as at doc. No. 12050247.

The L-1 Intracompany Transferee Visa Facing Attack -- from All Branches of the Federal Government (Part II)By Angelo A. Paparelli

As noted in our last post, American businesses which offer U.S. secondments to their executives, managers and specialists from affiliated entities abroad must take proactive measures to address several ominous developments adversely affecting the tried-and-true L-1 work visa category for Intracompany Transferees. Even if a U.S. company can’t tell an L-1 from an elbow, concern over this visa category is important if the business engages the services of third-party vendors and service providers whose personnel to be stationed at the customer’s worksite must rely -- as is often the case -- for employment authorization under the L-1 visa category. As will be seen, L-1 troubles are brewing everywhere.I. U.S. Citizenship and Immigration Services (USCIS). This component of the Department of Homeland Security (DHS) recently issued a policy memorandum (“Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO)”), reaffirming that decisions which are not designated as precedent should only “apply existing law and policy to a unique factual record in an individual case,” and “[do] not create or modify agency guidance or practice.” Despite this policy, USCIS adjudicators continue to follow the reasoning of the 2008 GST case, which clearly articulated new, highly restrictive L-1B specialized-knowledge criteria and rejected an established and workable policy memorandum on visa eligibility for persons seeking L-1B classification. On the L-1A front, a visa category for foreign executives and managers, USCIS’s responses have been unpredictable and mostly problematic. Some cases are approved without objection, typically if the company is large and hierarchical in its operational structure, while other cases (especially for managers in companies with flat organizational management) trigger the issuance of a burdensome and time-consuming requests for additional evidence which, after submission of more documentation, are far too often denied. When cases are rejected, the denial typically states that “[a]n employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.” The agency’s rationale might be legitimate if it were based on regulations in force before enactment of the Immigration Act of 1990 (the 1990 Act). Today, however, regulations issued in 1991 implementing the 1990 Act’s liberalized definition of L-1A “manager” by creating the function manager classification and embodying Congress’s intent to modernize the L-1A category to make it more flexible. See Brazil Quality Stones v. Chertoff, accessible here. Of particular significance, the pre-1990 Act regulations contained (but the 1991 regulations omitted) an express bar to L-1A visa eligibility for “an employee who primarily performs the tasks necessary to produce the product and/or to provide the service(s) of the organization.” The only reasonable inference to be drawn from this intentional excision from the rule is that to qualify for an L-1A, persons who primarily manage functions need not be engaged in the management of people. Rather, exercising responsibility for a critical function of the organization (which may involve “primarily perform[ing] the tasks necessary to produce the product and/or . . . provid[ing] the service(s) of the organization”) is nevertheless deserving of L-1A classification. Employer Takeaway: Employers seeking to establish L-1A function manager visa eligibility should therefore make sure their immigration counsel outline the relevant rulemaking history when submitting a function-manager petition.II. U.S. Department of State and Consular Officers. In Fiscal Year 2012, U.S. consular officers issued 134,212 L-1 visas. With the exception of American posts in India, consular officers have generally been quite willing to issue both individual L-1 visas, based on petitions pre-approved by USCIS, and blanket L-1A and L-1B visas for companies designated by USCIS as high-volume filers. American employers have reported, however, that L-1 visa refusals by American consular posts in India have increased dramatically since 2006. The concern over L-1 visa refusals in India, particularly under the L-1B category, is troubling because Indian citizens account for a material percentage of L-1 visas issued worldwide, as well as for such visas refused. As I learned from a visit last month with consular officials at the American Consulate in Chennai, the high L-1 refusal rate is attributable to several factors:

The time available for each L-1visa interview, ranging from 1.5 minutes to 6 or 7 minutes, and averaging 3 minutes,

The consular officers’ focus on the oral response of the visa applicants to questions posed about the individual’s prior employment history and proposed U.S. duties, as well as inquiries into how the prospective employer obtained the contract to provide services in the U.S. (a consideration of commodity work based on low price for which specialized skills are not needed versus unique, value-added services),

The absence of time for consular officers to read much, if any, of the documentation submitted by the petitioning employer to demonstrate L-1 visa eligibility,

Strict adherence to current State Department L-1 visa guidance, which relies upon the non-precedent GST case, and

The consular officer’s application of the “clearly approvable” standard for blanket L-1 visa issuance, which is seen as far higher than the “preponderance of the evidence” (more likely than not) standard of proof applied by USCIS.

Employer Takeaway: Employers and customers of service providers who rely on access to L-1 workers should focus much more effort on preparing the visa applicant for the consular interview and perhaps less on supporting documentation which the consular officers may not have time to read, and which -- according to one vice-consul with whom I spoke -- include “cover letters [that] read like advertising materials.”III. The DHS Office of Inspector General (OIG). At the request of Senator Chuck Grassley, the OIG last month issued a report, “Implementation of L-1 Visa Regulations,” which supplements a 2006 study, “Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program.” The OIG’s 2013 report is based on information gleaned from statements of government officials and fails to interview external stakeholders in the business community. The OIG found high potential for fraud and abuse in the L-1 visa program, but failed to investigate or assess the economic benefits to American employers and U.S. workers under the L-1 program. Without offering a legal analysis, the OIG report sided with the AAO in its GST non-precedent decision, and offered numerous process recommendations to make L-1 visas harder to obtain and keep, including site visits both before and after L-1 petitions are approved -- a step USCIS has agreed to initiate.Employer Takeaway: As noted, employers should consider placing less reliance on documentation and much more on preparing individuals applying for L-1 visas at American consular posts in India for foreseeable questions officers are likely pose during the interview. Employers and customers of service providers who rely on access to L-1 workers should prepare for unannounced USCIS visits to company worksites by the agency’s Directorate of Fraud Detection and National Security (FDNS) to verify the representations made on visa petitions and applications.IV. Congressional Proposals. Congress is also assailing the L-1 visa. S. 744, the massive comprehensive immigration reform bill that passed the Senate over the summer, includes (among other restrictions) an entire section on L-1 visa changes that are patently more restrictive, “Title IV, Subtitle C—L Visa Fraud And Abuse Protections,” as described in the Senate Judiciary Committee’s section-by-section analysis (starting at page 141). These proposed restrictions include: Section 4301. Prohibition on Outplacement of L Nonimmigrants. Section 4302. L Employer petition requirements for employment at new offices. Section 4304. Limitation on Employment of L Nonimmigrants. Section 4305. Filing Fee for L Nonimmigrants. Section 4306. Investigation and Disposition of Complaints against L Nonimmigrant Employers. Section 4307. Penalties. Employer Takeaway: Directly and through business associations and trade groups, Employers should reach out to their Congressional representatives to let them know that the changes proposed and the administrative agency interpretations now in force are hurting their business operations and must be reversed.V. Judicial Interpretations. The federal courts are also taking aim at the L-1 visa category, usually deferring to immigration-agency determinations and providing little relief in response to erroneous agency action. A recent example is Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, which follows the GST case reasoning and defers to the presumed expertise of USCIS in immigration adjudication, even though that AAO decision, as shown above, is non-binding and contradicts prior established USCIS policy in the Puleo memorandum. The district court in Fogo De Chao does not consider the Supreme Court’s immigration-law ruling in Judulang v. Holder, 132 S.Ct. 476 (2011), in which the Justices found arbitrary and capricious behavior by a tribunal (the Board of Immigration Appeals or “BIA”) in the government’s effort to remove a lawful permanent resident. The Court declined to follow the tribunal’s latest interpretation in part because the tribunal "has repeatedly vacillated in its method for applying" the law's requirements. 132 S.Ct. at 488. Speaking in terms that could apply equally to the USCIS’s current expression of its L-1B criteria, the Judulang decision found that the BIA had “repeatedly vacillated in its method for applying” a section of the Immigration and Nationality Act (INA), and therefore declined to defer to the BIA’s presumed expertise. Employer Takeaway: Employers who seek federal court review of erroneous L-1 decisions by USCIS should make sure their immigration counsel demonstrate to the court how USCIS has “repeatedly vacillated in its method for applying” the eligibility criteria under the INA’s L-1 definitions of executives, managers and persons with specialized knowledge, and urge as a result that court pay no deference to the agency’s changing L-1 determinations.

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Regrettably, the L-1 visa category is not the only employment-based benefit under attack by the three branches of the federal government. Similarly arbitrary and capricious decisions are made every business day across the pantheon of nonimmigrant work visas and employment-based green cards. Given these daunting challenges, employers and their internal counsel should reconsider the way they deal with their immigration-related business objectives. Thus, if ever there is a time for improving the employer’s immigration portfolio management, it's now.

The L-1 Intracompany Transferee Visa Facing Attack -- from All Branches of the Federal Government (Part I)By Angelo A. Paparelli

U.S. employers have likely grown accustomed to the longstanding controversy over the highly coveted H-1B visa for workers in a “Specialty Occupation” -- the nonimmigrant category whose annual quota for professional workers often is exhausted within a week of each year’s new allotment. The H-1B controversy arose because of apocryphal or largely unproven allegations, fueled by media reports and some politicians, that employment of H-1B workers somehow undercuts job opportunities for American citizens and promotes the offshoring of jobs. As studies have shown, however, the H-1B actually creates job opportunities for citizen workers. Many American employers, however, are less familiar with the comparable brouhaha now brewing over the L-1 or “Intracompany Transferee” visa. The L-1 -- a veritable Clydesdale of work visas -- allows executives, managers and employees with specialized knowledge, gained at an overseas affiliate, subsidiary or parent, to enter the U.S. and work in a comparable capacity for a related company. This two-part blog post will show why employers hoping to import L-1 workers must now be prepared to submit more thoroughly documented cases in the face stiff of opposition from government adjudicators, Congress and the federal courts, as this formerly flexible and useful visa category is assailed from all quarters. New constraints on the L-1 visa category, as will be shown, stem primarily from two Senators (Chuck Grassley and Dick Durbin), a coterie of federal bureaucrats, immigration adjudicators, consular officers, and some federal judges who pay undue deference to the presumed expertise of the primary immigration agency, U.S. Citizenship and Immigration Services (USCIS).

Introduction to the L-1 Visa Category and a Retracing of Recent History

Created in 1970, the L-1 visa was enacted to “help eliminate problems [then] faced by American companies having offices abroad in transferring key personnel freely within the organization’ in order to “meet the objective of American industry which has been seriously hampered in transferring personnel . . .” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. at 2753-54. From 1970 to 2008, the L-1 visa worked well, pretty much as Congress intended, although start-up companies often encountered difficulty bringing foreign managers into the country (unless the new venture already employed two tiers of personnel -- something start-ups rarely do). Congress tweaked and liberalized the L-1 in 1990. It created a new “L-1A” subcategory that included a class of “function manager,” in addition to the two existing types of manager -- (1) a manager of at least a double layer of subordinate personnel, and (2) a first-line supervisor of “professionals” (individuals who held at least a relevant bachelor’s degree or the equivalent in the relevant field). Congress also said that government adjudicators, when considering whether staffing functions are relevant in determining whether a candidate qualifies as an L-1A manager, must consider “the reasonable needs of the organization, component, or function in light of [its or their] overall purpose and stage of development. Lastly, Congress specified two new alternative definitions of specialized knowledge under the “L-1B” subcategory. The immigration agency at the time, Immigration and Naturalization Service (INS), provided regulations in 1990 acknowledging that Congress had adopted the new function manger classification and broadened the basis for “specialized-knowledge” eligibility. It also later offered two policy memoranda that liberally interpreted specialized knowledge and provided several real-world examples to demonstrate the concept. The more detailed of the two L-1B policy memoranda, issued by an INS administrator named James Puleo, thus became the “Puleo memorandum” and it stood unquestioned as agency policy (likewise followed by the Department of State) for several years. With the INS regulations and the Puleo memorandum as guideposts, adjudicators generally approved well-documented L-1A and L-1B visas with consistency and predictability, as long as managers “primarily” managed subordinates or functions (meaning that they spent abroad and would spend in the U.S. over half the time in management activities as defined under the INS regulations), and specialized-knowledge candidates satisfied one or the other of the liberal Puleo standards. And employers mostly said, “It is good.” But then, out of the blue, the successor to INS, USCIS, through its Administrative Appeals Office (AAO), issued a “non-precedent” decision in 2008 that came to be dubbed the “GST” case. GST essentially repudiated the Puleo memorandum on L-1B specialized knowledge without any change in law or regulations. In addition, gradually over many years, before and especially since 2008, the L-1A also faced attack. Despite the new “function manager” classification Congress created in 1990, USCIS adjudicators tended to insist that a function manager could not “primarily” manager the function, unless he or she supervised subordinates. Otherwise, the individual would be seen as performing the function rather than managing it, and be found ineligible for an L-1A. This interpretation essentially eradicated the 1990 changes Congress made to liberalize L-1A manager eligibility. These new constraints on L-1 visa eligibility came not from USCIS headquarters or newly published regulations signaling a change in agency interpretation, but from front-line case officers at agency’s Regional Service Centers, and then were blessed by the AAO in the supposedly non-binding GST L-1B case and in similarly restrictive AAO nonprecedent decisions interpreting the L-1A function manager category. As Part II (appearing in two days) will show, this bottoms-up movement from within USCIS gradually has taken on the trappings of black letter law, and been copied and adopted by the U.S. Department of State’s Visa Office (which inexplicably reversed its earlier liberal interpretation), U.S. consular officers at embassies and consulates abroad, and the Department of Homeland Security’s Office of Inspector General. Even more troubling, the Senate and the House have proposed new constraints on the L-1 visa. If enacted, these proposals will add an obligation to pay an artificially inflated prevailing wage, encourage L-1 investigations and worksite visits, and allow the filing of civil claims against employers of L-1A while drastically restricting multinational consulting and sourcing firms from using the visa category. Part II will also suggest measures employers can pursue to continue using the L-1 to achieve their domestic and glob al business objectives. Stay tuned.

French philosopher and aphorist, François-Marie Arouet, better known by his nom de plume, Voltaire, wrote in Italian that "Il meglio è l'inimico del bene [the perfect is the enemy of the good]." The wisdom of this saying, championed by pragmatists everywhere, comes to mind upon reading a May 30, 2013 Policy Memorandum (PM) issued by the Department of Homeland Security component known as United States Citizenship and Immigration Services (USCIS). The agency and its popular Director, Alejandro Mayorkas, must be commended for removing much of the entangling underbrush that has grown around the "Employment Creation" fifth preference immigrant visa category (EB-5) for an investor who places at risk either $500,000 or $1 million (depending on location) in a commercial venture projected to create at least 10 jobs for U.S. workers. With the enthusiasm of a vigilant homeowner wielding a high-powered weed-whacker, USCIS's PM has obliterated many ambiguities and unanswered questions that had prevented the widely popular EB-5 investor program to reach its full potential. In one document, USCIS offered a comprehensive set of interpretations that promises to allow the EB-5 category to flourish. Gone are most of the lingering doubts about the viability of bridge financing, and the stultifying restrictions imposed by an overly granular application of multi-digit "NAICS" codes -- a numbering system known as the North American Industry Classification System that the U.S. Census Bureau uses to identify and monitor various types of business establishments. Also welcome are clarifications concerning (a) the relative power of the states and USCIS to define Targeted Employment Areas or TEAs -- rural areas and areas with unemployment at or above 150% of the national unemployment rate; (b) the specific circumstances when USCIS-designated Regional Centers (public or private entities authorized to accept EB-5 funds and allow its foreign investors to count direct and indirect job creation in reaching the 10-jobs-per-investor minimum) may or must submit amended petitions in order to change business activities or location, or when prior favorable EB-5 determinations will be given "deference," i.e., binding effect; and (c) the very limited situations when a business plan that has been derailed by unforeseen changes might adversely affect the later USCIS decision whether to remove conditions on permanent residence. Still, without striving for perfection, USCIS could have made the PM much better. Here are my suggestions for EB-5 PM 2.0:

The PM states: "Prior policy guidance, to the extent it does not conflict with this PM, remains valid unless and until rescinded." Why allow ambiguities to linger? USCIS should rescind all prior guidance and incorporate all extant EB-5 policies in a single document as THE EB-5 Policy. Having taken the weasely approach of allowing prior non-conflicting EB-5 policies to survive, the new PM merely begs the question and allows agency adjudicators, regional centers, individual investors and their lawyers to argue over the "extent" to which prior policies have been superseded or supplanted. Enough with the arguing. Make it clear in one document.

Republish the policy as a proposed or interim final rule in the Federal Register and allow notice and public comment. The new PM says:

SCOPE: This PM is applicable to, and is binding on, all USCIS employees. * * * VII. Use This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

If USCIS were to pursue the admittedly slow procedure envisioned under the Administrative Procedure Act for publishing notice of a rule and the opportunity for the public to comment, none of the quoted verbiage, wiggle words no doubt drafted by the USCIS Office of Chief Counsel, would be necessary. As welcome as the new PM is, and although it was preceded by a draft version on which the public was allowed to comment, USCIS never published the comments in the Federal Register (as would occur with a proposed or interim rule) and never explained why some comments were adopted and others eschewed. Instead, the public and the courts are left to guess at whether the PM will actually be applied and be something on which the stakeholder community may rely.

Make sure economists are not EB-5 adjudicators. Last week at a public forum, Director Mayorkas waxed lyrical over a supposed innovation he heralded. Henceforth, EB-5 adjudications would be made not by Immigration Officers but by newly hired economists who, he surmises, are better equipped by education to tackle the complex business and economic issues that arise in EB-5 petitions. From now on, USCIS would no longer adopt the "hire to train" approach, whereby an indivdual is brought into the agency without experience and then trained in adjudicating a variety of immigration-benefits petitions and applications. Rather, here on out in the EB-5 context, according to Director Mayorkas, the agency will pursue a "hire to the skill" strategy, one that means that the successful job applicant at USCIS will only be hired if s/he already possesses the requisite skill -- an approach much like that of private industry. While the "hire to the skill" concept has much to commend it, the particular skill USCIS requires is not that of an economist. No, the skill in question is possessed by those with a legal education. At bottom, the EB-5 -- although containing elements of economic theory -- is ultimately a legal determination made by the application of facts to law. USCIS should instead offer positions at a level of GS-13 and above to persons with at least a juris doctorate, preferably with bar admission and the ethical testing that entails. This is not forging a new path; rather, it is merely replicating the reorganization of an adjudication function as occurred when the USCIS Asylum Office was reconstituted with lawyers in place of multi-function general adjudicators. Economists can be advisors but should never be USCIS adjudicators.

Follow existing USCIS regulations in determining when a restructuring or reorganization creates a new EB-5 commercial enterprise. The EB-5 requires investment in a "new commercial enterprise" created, restructured or reorganized after the effective date of the law, November 29, 1990. On this point, the new PM states:

The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. 8 C.F.R. § 204.6(h)(2). The facts of Matter of Soffici — where an investor purchased a Howard Johnson hotel and continued to run it as a Howard Johnson hotel— were not sufficient to establish a qualifying restructuring or reorganization. 22 I&N Dec. 158, 166 (Assoc. Comm’r 1998) (“A few cosmetic changes to the decor and a new marketing strategy for success do not constitute the kind of restructuring contemplated by the regulations, nor does a simple change in ownership.”). On the other hand, examples that could qualify as restructurings or reorganizations include a plan that converts a restaurant into a nightclub, or a plan that adds substantial crop production to an existing livestock farm.

The PM too narrowly defines a corporate restructuring or reorganization as only encompassing a change in the business model or plan. Instead, USCIS should adopt a customary corporate or tax law determination of when a reorganization or restructuring occurs as it did in its I-9 (employment-eligibility verification) rules at 8 C.F.R. § 274a.2(b)(1)(vii). In that USCIS regulation an employer has the option of treating an individual as either a continuing or a newly hired employee if the worker "continues his or her employment with a related, successor, or reorganized employer" and the "employer . . . continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets . . ." Thus, whenever a predecessor entity undergoes a change involving a corporate reorganization, merger, or sale of stock or assets, then the successor entity thereby created should be treated at the employer's option as a new commercial entity for EB-5 purposes. If the "simple change in ownership" dictum of the legacy agency in Matter of Soffici is to the contrary, then USCIS should overrule it. Sauce for the goose is sauce for the gander.

No EB-5 adjudication without representation. USCIS must allow every party in the EB-5 ecosystem with a valid legal interest to protect the right to counsel at no expense to the government in proceedings before the agency. USCIS must not persist in perpetuating conflicts of interest (real or really possible) by barring the attorney for the regional center or the pooled-investment enterprise to advocate for the validity of his or her client's position when a foreign citizen submits a petition for EB-5 classification on Form I-526 or a petition for removal of conditions on Form I-829. Regional centers and pooled investment entities have their businesses and brands at stake with every I-526 and I-829 submitted, yet USCIS muzzles them and expects the investor-chosen lawyer to carry their water. The SEC would never require businesses to risk their assets or reputations by relying on the investors' counsel to argue their interests. Neither should USCIS.

It's time for Expedited Adjudication. Quite a while back, USCIS indicated that it would adopt Premium Processing expedited service for at least some EB-5 adjudications. With the hiring rate still barely keeping up with population growth, the time for quick decisions across all categories of EB-5 petitions is NOW.

It's time for coupling. There is no reason why the new PM did not announce a benefit that is presaged in S. 744, the comprehensive immigration reform bill awaiting floor debate in the Senate. That bill, as amended by a change Senator Leahy proposed, would allow foreign citizens who submit EB-5 petitions to file, concurrently, corresponding applications for adjustment of status to conditional permanent resident. Concurrent petition and adjustment filing has long been allowed by USCIS -- without the need for enabling legislation -- in the first three employment-based green card categories. USCIS should extend the same privilege to EB-5 petitioners and their immediate family members.

* * *

The USCIS should be applauded for issuing a comprehensible and almost comprehensive PM. The huzzahs will be louder still if and when it adopts additional measures, suggested above and by others, that would create conditions for the EB-5 program to blossom even more prodigiously in the years ahead.